[2021] KEBPRT 334 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

AT MOMBASA

TRIBUNAL CAUSE NO. 293 OF 2020

DEEGISAT TV SERVICES LIMITED...................................................TENANT/APPLICANT

VERSUS

ESS PEE ESS INVESTMENT .....................................................LANDLORD/RESPONDENT

RULING.

1. The application before me is the Tenant’s Notice of Motion dated 31st May, 2021 brought by way of certificate of urgency seeking for a plethora of orders. The gist of the application is that the parties herein entered into a tenancy agreement sometimes in October 2018. The parties do not dispute that the tenancy agreement was for a period of five years hence is a controlled tenancy as per the provisions of Section 2 of Cap 301.

2. The orders sought by the tenant in their application are injunctive orders against the Landlord and an order to reinstate an earlier application dated 30th November, 2020. A mere perusal of the earlier application indicates that the same sought almost similar orders as the present application.

3. The Landlord in response to the application and in accordance to the provisions of Order 51 Rule 14 filed a Replying Affidavit and Notice of Preliminary objection in opposition to the application. The parties agreed to canvass the application by way of written submissions.

4. Both parties have filed their submissions in support of their respective positions. I have considered the same, the history of this matter and the pleadings filed and shall proceed as follows.

5. The Landlord has in their submissions in support of their preliminary objection framed their issues as follows:

i.The Advocate for the Applicant is not properly before court

ii.The matter for determination before the BPRT at Mombasa has now become res judicata.

iii.The Director who executed the tenancy agreement has since died and the suit is therefore abated

iv.The tenant herein has been evicted from the suit and there is no longer a tenant landlord relationship therefore this Tribunal lacks prerequisite jurisdiction

v.There does not exist any Landlord /Tenant relationship since October 2018 when the Applicant failed to pay rent now standing at Kenya Shillings One Million Six Hundred Thousand

vi.The Landlord / Respondent prays for the application dated 31st May, 2021 to be dismissed with cost as it is an abuse of the court process.

6. The issues raised above are mainly on points of law and it shall be prudent that I delve into the same before I discuss the merits of the application.

7. I will deal first with the issue of the representation of the Applicant by their counsel. It should be noted that the Applicant did not have an advocate on record. Counsel for the Respondent has pointed me to the provisions of Order 9 Rule 9 of the Civil Procedure. It is their position that the advocate for the Plaintiff was under a mandatory obligation to seek the leave of the Tribunal before coming on record.

8. Several authorities have been tendered in support of this. The effect of allowing this prayer shall be a locking out the Applicant from the hallowed temple of justice. I am alive to the plethora of authorities from the superior courts of record which have urged the courts and tribunals to desist from considering the provisions of Article 159 as the panacea of all the procedural defects.

9. The right of a litigant to be represented by counsel of their choice is protected under the constitution. The Respondent has failed to indicate the kind of prejudice that they stand to suffer. The issues of representation in my opinion should have been raised at the earliest instance; for counsel to have proceeded exchanging documents and prosecuting the present application at the various stages without pointing to this is mischievous and a delay tactic meant to derail this matter further.

10. I have perused the record and the order that was issued by the Tribunal was one dismissing the application and not the reference in its entirety. The ruling even though having created a huge dent to the substratum of the reference was only interlocutory. The advocate for the applicant was therefore justified in filing a notice of appointment of advocate dated 9/6/2021 without seeking the leave of the Tribunal.

11. I will now turn into the issue of whether the present reference is res judicata. The law pertaining to the doctrine of res judicata is captured under the provisions of Section 7 of the Civil Procedure Act which states:

“No court shall try any suit in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

12. The doctrine of res judicata has stated has been explained in a plethora of decided cases. In the case of the Independent Electoral and Boundaries Commission –v- Maina Kiai & 5 Others (2017)eKLR,the Court of Appeal held as follows:

“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in distinctive but conjunctive terms:

a) The suit or issue was directly and subsequently in issue in the former suit.

b) The former suit was between the same parties or parties under whom they or any of them claim.

c) Those parties were litigating under the same title.

d) The issue was heard and finally determined in the former suit.

e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

13. The court explained the role of the doctrine thus:

“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectra of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundation of res judicata thus rest in the public interest for swift, sure and certain justice.”

14. In my understanding the res judicata principle is meant to lock out from the court system a party who has had his day in a court of competent jurisdiction from re-litigating the same issues against the same opponent.

15. The Respondent has attached copies Memorandum of appearance and summons to enter appearance as their evidence for the existence of suit involving the same parties. No other piece of evidence has been adduced so as to inform the tribunal on the nature of the dispute in the earlier filed suit. The parties have failed to attached a judgement or ruling which determined the matter with finality.

16. . It is clear that in order to determine whether the suit is res judicata or not, this Tribunal has to engage in a fact-finding mission to determine the nature of the previous suit filed. On this armpit the notice of preliminary objection fails.

17. The Respondent has stated that the lease signed by the parties is defective and has abated by virtue of the death of the director who appended his signature on behalf of the Respondent company. I have combed through statutes and case law as the Respondent did not point me to any. This argument has no basis in law. It not anchored in any statute. In fact, companies have the advantage of having perpetual succession. It should be noted that company is a corporation and an artificial person it has no body, mind or soul but it rests only on the intendment and consideration of the law. It cannot die like a human person since it is born by a process of law it can only be destroyed by the same process. Unless and until that process is brought into play, it cannot be brought to an end hence a company has perpetual succession and hives indefinitely.

18. The Respondent did not point to any illegality and or irregularity occasioned by the actions of the deceased director in executing the lease agreement.

19. I will finally turn to the issue of the existence of a Landlord- Tenant relationship. I will endeavour to be brief on this as the facts speak for itself. A Joint inspection undertaken in the presence of the representatives of the two protagonists revealed that the tenant is still in occupation of the demised premises.

20. It should be noted that default in rent payment does not automatically extinguish the Landlord tenant relationship as alluded to by the Respondent. The process of terminating tenancy is explicitly provided for by the relevant provisions of Cap 301.

21. The above determination now leads me to a consideration of the merits of the application. As stated earlier, the applicant seeks interim injunctive reliefs. The application is premised on Order 40 of the Rules which empowers this Tribunal to grant a deserving party temporary injunctive relief before conclusion of a trial. Needless to state, an injunction is an equitable remedy which is granted in the exercise of a court’s discretion depending on the facts and circumstances of each case and the ends of justice.

22. In order to be deserving of grant of orders of temporary injunction, an applicant must satisfy the conditions laid down in the celebrated case of Giella V Cassman Brown & Company Limited, (1973) 358 EA which are the following:

(i) The applicant must establish a prima facie case with a probability of success.

(ii) The applicant must then demonstrate that he or she stands to suffer irreparable loss or damage which cannot be adequately compensated by an award of damages.

(iii) Where there is doubt on the above, that the balance of convenience tilts in favour of the applicant

23. The Applicant in their application alleged that there was an intended eviction exercise by the Respondent. The Respondent has admitted to this albeit indicating that the same was completed. It is now settled that the tenant occupies the demised premises. The tenant has therefore established a prima facie case.

24. Turing to the second requirement, the Applicant has demonstrated in their application that they had invested heavily in the demised premises. The tenant having leased the premises to carry out business as per the terms of the executed lease agreement, they had genuine and legitimate expectations to carry out their activities while enjoying quiet possession. Any order that may disrupt this will cause them to suffer irreparable damage.

25. The Applicant having satisfied the two requirements; it will be an academic sojourn to discuss the third as the balance of probability tilts in favour of the Applicant.

26. The applicant also sought an order reinstating the reference. They have informed the Tribunal the reasons for their absence when the matter came up. The Respondent has not refuted the claims made that the Applicant indeed notified them of the internet challenges they experienced. The Applicant has attached a screenshot of a text message to support their claim. I am convinced that the explanation given for the absence is satisfactory.

27. The other issues raised in the application is an attempt by the Applicant to have this Tribunal renegotiate the terms of the tenancy agreement. I would remind the Applicant that a court or tribunal cannot rewrite contracts for parties as was held by the Court of Appeal in the case of National Bank of Kenya Ltd vs Pipeplastic Sankolit (K) Ltd. Civil Appeal No. 95 of 1999.

28. The upshot of this is that the application is allowed in terms of prayers 2-8 with no orders as to costs.

29. Parties to take deliberate steps to prosecute the reference within reasonable timelines.

RULING READ SIGNED & DELIVERED THIS30TH DAY OFAUGUST2021.

HON. P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Kamanza for the Tenant/Applicant

No appearance for the Landlord/Respondent